Saturday, September 1, 2018

Sadly,
there are road accidents and people do get injured or lose their lives in
accidents involving vehicles.Motor
Vehicles Act inter-alia, provides avenues for compensation for such victims and
has evolved a simplified procedure wherein applications (petitions) can be
filed before Motor Accident Claims Tribunals (MACT) .. .. there are thousands
of petitions filed in various MACTs arising out / attributed to road
accidents..

Here is one
interesting case involving a leading Private Insurer filed before a MACT in
Kerala.In Mar 2013, a person (cleaner
of a lorry) was standing by the side of the tipper which was being loaded by a
Tata Hitachi equipment – it was loading granite stones to the tipper to be
carried elsewhere.Unfortunately, the
bucket of the Hitachi whilst being moved hit the person, who suffered fractures
and stress injuries ..the injuredfiled
a petition u/s 166(1) (a) of MV Act
claiming compensation of Rs. 10 lakhs.The accident occurred in a quarry.The injured though was a workman, did not claim against the owner of the
truck but filed the petition against the Hitachi as third party.

The Insurer
for the Hitachi (which was insured with them under Contractor’s Plant &
Machinery) filed counter contending that the equipment insuredis not
a Motor vehicle and the claim petition is not maintenable. They further
contended that this being an Engineering Policy did not cover the liability as
contemplated by the Motor vehicles Act.

Hearing the
pleadings, the Court framed the following issues : -

oWhether the accident arose out of
use of a motor vehicle

oWhether the accident occurred due to
negligent operation of Tata Hitachi

oWhether the petitioner is entitled to
compensation as claimed & the quantum

oWho is liable to pay compensation.

oRelief and costs.

The
petitioner reportedly was standing near the tipper when granite stones were
being loaded and the operation of the Hitachi insured, caused the
accident.Insurer contended that the
equipment is not a Motor vehicle - the Court concluded that as per sec 2(28) of MV
Act definition : motor vehicle or vehicle is any mechanically
propelled vehicle adopted for use upon road whether the power of propulsion is
transmitted thereto from an external or internal source and includes a chassis
to which a body has not been attached and a trailer but does not include a
vehicle running upon fixed rails or a vehicle of a special type adopted for use
only in a factory or in a closed premises .. .. or a vehicle having less than 4
wheels fitted with engine capacity of not exceeding 25 cc.

The
Insurer’s Counsel submitted that Tata Hitachi is a vehicle running upon fixed
rails and specially adapted for quarry and thus would not come under the
purview of MV Act.A picture of Hitachi
equipment was also provided by the petitioner for awareness of the Tribunal
wherein it was observed that it had wheels, driver cabin and adapted for road
use.The Tribunal concluded that it was
a motor vehicle coming under the definition of Sec 2 (28) of the Motor Vehicle
Act relying upon a judgment passed by Honble High Court of BombayinVikramIspatVs State of Maharashtra when the
machine involved was a mechanically propelled vehicle having chassis, chain
wheels, driver cabin and moving on rugged surfaces of quarry.Relying upon this decision, it was submitted
that a test whether particular vehicle is motor vehicle or not would be that, if
the vehicle is reasonably suitable for being used along public roads and the
fact that manufacturers have made or intended the vehicle for one purpose or
other or the dealer has sold it for a particular purpose or that a particular
vehicle is described by a particular name or description, is no criterion to
decide whether the vehicle is adapted for use upon theroads within the meaning of the definition
given in Sec 2 of MV Act.

It was
observed from the said decision that if the vehicle is fit and suitable for
being used on road, it is immaterial whether it runs on a private road or a
public road unless it is shown that it is of a special type adapted for use
only in factories ro enclosed premises and is incapable of running on any types
of roads or public roads.From the
picture of Hitachi, the Court observed that it had wheels and a driver cabin
and it is suitable and adaptable for being used on a road.Court further stated that though used in
quarry, it can be used on roads and amenable for that and cannot be said to be
adapted for use only in enclosed premises.It was concluded that the equipment would fall under the definition of
Sec 2(28) of the Motor Vehicles Act

On the
occurrence, the Tribunal observed that the equipment handler should have
exercised due diligenceand absence of the
same can be termed as negligenceand concluded
that the accident occurred due to negligent operation of Hitachi.

The insurer
contended that the place of occurrence was a quarry owned by a private
person.This was brushed aside by the
Tribunal that as per section 2 (34) – public place means a road, street, way or
other place, whether a thoroughfare or not, to which the public have a right to
access and includes any place or stand at which passengers are picked up or set
down by a stage carriage.The element of right of access dominates the definition, though
the place of occurrence was a property owned by a private person, the act of
loading granite stones, public had a right to access and at the time of
accident, the tipper lorry had been taken to the place for loading – and it was
concluded that it was a public place.

On the basis
of petition, it was concluded that the petitioner sustained injuries out of use
of Tata Hitachi, construed as a motor vehicle in a public place. Going by the
wound certificate and other medical documents, age of petitioner @ 26 –
adopting multiplier of 17 – under the head permanent disability Court
calculated compensation and arrived at an amount of Rs.534036/-

Thus,
before the Tribunal the accident was proved; petitioner’s injuries were proved;
Tata Hitachi was deemed a motor vehicle, place of accident – a public place and
accident caused by negligence of the operator of the equipment – considering facts and circumstances of the case, Tribunal
arrived at a compensation of Rs.5,34,036/- that included heads of loss of
earning / medical bills, nourishment, amenities.With all these against the
Insurers, normally, there would have been an award against the Insurers, more
so, with the owner of the vehicle remaining ex-parte. Well, that was not the end.

The
insurers had carefully and thoughtfully drafted counter highlighting that it
was a policy issued as CPM and not a policy issued under Chap XI under Sec 145
of Motor Vehicles Act.They filed the
policy alongwith its terms and printed conditions.The Insurer’s counsel drew the attention of
the Tribunal to clause (e) of exception of CPM which states that company shall
not be liable in respect of loss or damage to vehicles designed and licensed
for general road use.Further it was
forcefully contended that the policy was taken only to cover loss or damage to
the vehicle with specific condition that the vehicle be exclusively used on
construction site.It was also pointed
out by premium calculation and printed wording that there was no coverage for
any third parties.

The counter,
pleading, and evidence by the Insurance Officer was led to prove that it was a
policy covering equipment and no third party liability coverage was
availed.The Tribunal accepted the
contention of the Insurer and held that
only R1 (owner of the vehicle) was liable, exonerating
the Insurer from liability.

It is an
example of case properly handled by Insurer, putting their contentions, neatly
drafting the counter, filing documents and leading evidence.A lot of learning for the Insurer in a case
where they were exonerated, though every other aspect was proved against them.